Other Views: Are for-profits the same as churches?

On Nov. 26, the U.S. Supreme Court agreed to hear arguments in what promises to be the blockbuster case of its term, one that considers several hot-button issues: the constitutionality of Obamacare, compliance with the contraception coverage mandate, religious liberty versus reproductive rights and the legal "personhood" of corporations.

At issue is the requirement under Obamacare that businesses provide comprehensive health insurance plans that include coverage for contraceptives for their employees. Exemptions already exist under the Affordable Care Act for those houses of worship and religious organizations - including their religiously affiliated nonprofits - that object to contraception on religious grounds. The law also exempts for-profit businesses with fewer than 50 employees. What the law does not exempt from the requirement are for-profit businesses employing more than 50 persons.V

Enter Hobby Lobby stores, a national arts and crafts store with more than 500 stores and approximately 13,000 employees. The owners of the corporation, the Green family, are religious conservatives who personally object to certain forms of contraception, one being the "morning after" pill because of its association with abortion. They assert that their personal Christian faith also prohibits their company from complying with the law. A lower court agreed with the Greens, holding that their for-profit business could raise - and prevail on - a religious liberty claim entitling them to an exemption from the law.

The Hobby Lobby case represents the convergence of several controversial issues, not the least of which is whether the Court will expand on its controversial Citizens United holding that corporations have rights to engage in political expression through unrestricted spending. The idea that corporations possess limited free speech rights is well established, considering that they can sue for defamation and are protected in truthful advertising. Still, Citizens United took many people by surprise when the Court held that corporations have the same rights to political expression as natural persons. Now the Court will decide whether a corporation also has a right of religious conscience.

The idea sounds ludicrous, but it may represent the logical extension of the legal trend to extend individual rights to artificial persons such as corporations. Hopefully the Court will resist the impulse.

While the Court has correctly held that the right to freely exercise religion extends beyond individuals to communities of believers, many of which are organized as nonprofit corporations, significant differences exist between churches and for-profit corporations not organized for a religious purpose.

Churches and other religious nonprofits exist to enhance the shared religious experience of their members. Churches represent the combined spiritual voice of their members. Corporations exist chiefly to make money. No comparable burden on religious faith exists when a corporation is required to comply with a neutral public health regulation. Although the Greens may be offended by the mandate, their corporation does not possess a religious conscience.

Even if a for-profit corporation should enjoy the same religious rights as a church, exempting it from obeying the law produces vastly different costs. As stated, a church is a community of believers who have voluntarily subjected themselves to the commands, and costs, of their faith.

In contrast, Hobby Lobby, like most for-profit businesses, employs large numbers of employees who likely do not share the religious tenets of their employers and have not associated themselves with their employer for religious reasons. The corporation, in essence, is not a religious community. The owners of Hobby Lobby, however, are claiming the right to impose burdens on their employees based on their personal religious beliefs. Make no mistake, exempting Hobby Lobby and other for-profit businesses from the contraceptive mandate will burden women in their ability to receive important health insurance coverage.

The Hobby Lobby case will decide whether a business, created for the purpose of making money and not furthering any religious mission, should be able to exempt itself from complying with beneficial legislation based on the religious predilections of its owners. But more importantly, the case will decide whether a church is no different from a McDonald's franchise. The answer should be obvious, but in the aftermath of Citizens United, I'm not so sure.

Steven K. Green is a law professor and director of the Center for Religion, Law and Democracy at Willamette University in Salem, Ore. He can be reached at 503-370-6732.